I've got a little (state) secret to tell you.
Unless you're a total ignoramus, you must be aware that the Founding Fathers believed in creating a government that was permitted to keep secrets from its citizenry. I mean, come on, what could be more in line with the principles of arming citizens to fend off the government, protecting life, liberty and property and the freedom from unreasonable searches and seizures than the idea of state secrets? In fact, aren't state secrets mentioned in the Constitution?
Wait, you mean its not? You mean to tell me that the Founders didn't construct a system where your government could capture people, hold them, torture them and then not be held accountable? Well, if they didn't then where did this doctrine come from?
It came from the United States Supreme Court.
The state secrets doctrine stems back to a 1953 case in which the government persuaded the Supreme Court that "military secrets" trumped the rights of widows who were suing the Air Force over the death of their husbands. Generally, it applies when the information that would come out in trial would jeopardize national security interests.
Although that sounds reasonable in theory, it presents at least one sizeable challenge; since a court is not even allowed to review the evidence in its chambers ("in camera"), how can it make a reasonable determination about whether a state secret will be revealed other than by trusting the claims of the government?
The recent Supreme Court decision about this issue was whether to hear the appeal of Mr. El-Masri, a man who claims that he was held and tortured by the CIA in a case of mistaken identity. Mr. El-Masri's case was brought before a federal district court where it was dismissed on the grounds that a trial would violate this governmental privilege. That dismissal was upheld upon appeal and then the Supreme Court declined to hear his final appeal.
In Mr. El-Masri's case, the appeals court said that proving El-Masri was detained and interrogated by the CIA would "expose how the CIA organizes, staffs and supervises its most sensitive intelligence operations." Given that broad protection, it seems that the government need only use certain buzzwords like "CIA," "national security" or "top secret" followed by a slightly reasonable explanation of how that label applies, and the court would have no choice but to apply the state secrets doctrine and dismiss the case.
Assuming that in this day and age the government needs to keep certain things secret (despite the fact that this idea is a purely judicial creation and appears to be at odds with the intent of the Founders), does that imply that the government has free reign? And if the goal of the doctrine is to keep state secrets from the "enemy," what's wrong with allowing an in-camera hearing by a federally appointed judge or some other panel (especially given the existence of secret judicial panels approving wire taps)?
Malcolm Friedberg is the author of Why We'll Win, a book that explains the law behind hot button social issues to laypeople.